R v Gordon (No 2)
[2019] ACTSC 254
•5 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Gordon (No 2) |
Citation: | [2019] ACTSC 254 |
Hearing Date: | 5 August 2019 |
DecisionDate: | 5 August 2019 |
Before: | Mossop J |
Decision: | See [42] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – possess prohibited substance – intentional wounding – aggravated robbery – close relationship between charges – offending in breach of good behaviour orders including suspended sentences – offender with serious criminal history – offender’s previous opportunities for rehabilitation not embraced – sentences of imprisonment – suspended sentences imposed |
Legislation Cited: | Crimes Act 1900 (ACT), ss 21, 160 Crimes (Sentence Administration) Act2005 (ACT), s 110 Drugs of Dependence Act 1989 (ACT), s 171(1)(b) |
Cases Cited: | R v Gordon [2018] ACTSC 94 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 |
Parties: | The Queen (Crown) Isaac John Gordon (Offender) |
Representation: | Counsel M Fernandez (Crown) B Shelton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Offender) | |
File Numbers: | SCC 139 of 2019 SCC 321 of 2017 |
MOSSOP J:
Introduction
The offender, Isaac Gordon, has pleaded guilty in the Magistrates Court to the following offences:
a) one count of possessing a prohibited substance, namely 3,4‑methylenedioxymethamphetamine (MDMA) contrary to s 171(1)(b) of the Drugs of Dependence Act 1989 (ACT), the maximum penalty being imprisonment for two years, 50 penalty units or both (CC2019/4899);
b) one count of intentionally wounding another person contrary to s 21 of the Crimes Act 1900 (ACT), the maximum penalty being imprisonment for five years (CC2019/4901);
c) one count of aggravated robbery contrary to s 310(b) of the Criminal Code 2002 (ACT), the maximum penalty being imprisonment for 25 years, 2500 penalty units or both (CC2019/5920).
The offending puts him in breach of a number of good behaviour orders, some of which are associated with suspended sentences. I will return to these offences later in the reasons.
Facts
The facts were agreed. In summary they were as follows.
On Sunday, 28 April 2019, the offender was seated in the rear passenger seat of a vehicle parked in the Ngunnawal shopping centre carpark. The offender was wearing a black jacket. The victim, a young man, and two others were also in the vehicle. The victim was sitting in the front passenger seat of the vehicle with the window down. The offender left the vehicle with his brother, who was one of the other males seated in the vehicle, to access an Automatic Teller Machine (ATM). Upon returning, the offender approached the victim from behind, reached through the open window and placed a knife at his throat. The offender said “give me your stuff or I’ll kill you, I’ve just been to gaol for two years”. The offender asked for cash and various items in the vehicle. Upon the victim’s refusal the offender began to stab him four to five times with a 30cm kitchen knife. The victim was effectively trapped in the vehicle as this was occurring. The victim deflected most of the blows, however the knife punctured his left bicep, penetrated his arm and superficially entered his chest wall. The victim was afraid that he was going to die. He managed to grab the offender’s hand, hit him and push him away.
At some point the offender took from the vehicle a clip seal bag of pills belonging to the victim. A short time after fleeing the scene police apprehended the offender. Whilst the police were restraining the offender the clip seal bag of pills fell from the offender’s trouser pocket. The clip seal bag contained six snap lock bags which in turn contained five clear capsules each with an off-white crystalline substance. The bag and its contents were seized by police.
Police also found a black handled knife inside a black jacket which was on the ground nearby. The offender’s father later identified the knife as having come from his kitchen. Nearby CCTV cameras captured the incident. The black jacket worn by the offender at the scene was the same as that found by police near the location of his arrest.
When interviewed by the police shortly after his arrest, the offender made admissions in relation to his conduct.
The victim presented to Calvary Hospital with puncture wounds to his upper arm and chest. He had three wounds from a single stab that penetrated through his upper arm and then made a superficial penetration of his chest wall. He underwent surgery and will suffer permanent scarring as a result. There is the possibility of further physical and psychiatric consequences.
The capsules and their components were analysed by the Australian Capital Territory Government Analytical Laboratory. The content of the capsules weighed 1.751 grams. The content of 15 capsules were individually presumptively tested and then combined for confirmatory analysis. MDMA was detected in the off-white crystalline substance.
Objective seriousness
The aggravated robbery is in the mid-range of objective seriousness. It was committed in company and with a knife. It involved the infliction of serious injury upon the victim. It involved some planning as the offender admitted that he attended the area with the plan to steal drugs from the victim. The wounding was in the mid-range of objective seriousness for this offence having regard to the nature of the wound and the purpose of the conduct. The possession of the MDMA is in the low-range of objective seriousness for this offence.
Subjective circumstances
The subjective circumstances of the offender are described in a pre-sentence report prepared by ACT Community Corrections.
The offender is 23 years old.
He was raised by both parents in a positive family environment until his parents separated when he was 13 years of age. He stated he mostly resided with his mother during his teenage years. He recalled his mother had been unwell for as long as he could remember, however, when he was 15 years of age she was diagnosed with a long term manageable illness. He stated that this made his home life more difficult and that he usually helped his mother two or three days per week, assisting her to get to appointments and run errands. His mother visited him several times in custody and his father visited him most weeks. Mr Gordon stated he has been in a relationship with a female for approximately six months.
Prior to his period of custody he resided with his father, stepmother and younger brother and stated to the author of the pre-sentence report that he planned to return there upon his release. However, counsel for the offender indicated that he wished to go away and live with his grandmother in Cowra when he was released from custody, in order to get away from his association with antisocial people.
He completed Year 11 prior to ceasing his college education. He returned to education via the Canberra Institute of Technology, to study a Certificate IV in Community Work in 2015, however, he did not complete that course.
He was employed for a period of nine months in 2015 in an after-school care centre and was in receipt of Centrelink allowances prior to his period in custody.
He admitted that most of his friends and associates are involved in criminal activity or have criminal records.
He first tried alcohol at the age of 14 years. He recalled his consumption as “not often”, but when he did consume alcohol as a teenager, he would consume it to intoxication. He first tried cannabis at the age of 14, smoking it almost daily until he was 20 years of age. Mr Gordon admitted to irregular heroin use, but said that he did not have an addiction to the substance, reporting that he would use it only “every now and then”. He also admitted to smoking and injecting methamphetamine. He advised that when he was younger he was able to say “no” to the substance when offered, but during his most recent period in the community his methamphetamine use was problematic.
From 23 July 2018 until 14 August 2018, he participated in the Solaris rehabilitation program while in custody. He was exited from that program after a violent incident with another detainee. However, on 13 September 2018, he returned to participate in the program until he was released from custody on 10 February 2019. He returned to drug use shortly after being released from custody.
He did not participate in any prosocial organised activities while in the community.
He reported to the author of the pre-sentence report that he had been diagnosed with Attention Deficit Hyperactivity Disorder and Impulse Disorder when he was younger. He stated that he stopped taking his prescribed medication due to its side effects.
He admitted that he had attended the area where the offending occurred with a plan to steal drugs from the victim. He stated that when he first thrust the knife he was trying to grab the drugs and denied attempting to harm the victim. I do not give weight to this statement to the extent to which it is inconsistent with what appears in the Agreed Statement of Facts. He stated that he was sorry that he harmed the victim, however that he was not sorry he had stolen his drugs, justifying his behaviour, stating that he was angry that the victim was attempting to sell the drugs to his younger brother who was a minor.
The summary of the situation of the personal circumstances of the offender prepared by the author of the pre-sentence report is as follows:
Mr Gordon is a young man with a significant criminal record. He has a long history of drug use and recognised his behaviour changes negatively when he is under the influence of drugs. His history of violence is of significant concern, and his continued violent behaviour while in custody demonstrates poor self-management skills and disregard for the harm and effect he has on his victims.
Mr Gordon has had several opportunities to demonstrate a willingness to abide by the law, having numerous recent community based orders, however, his non-compliance with such Orders and ongoing offending is reflective of his antisocial attitudes, a pattern of disrespect for Court orders and lack of consequential thinking.
Mr Gordon is assessed as a high risk of reoffending. Should he address his drug use, mental health, employment, criminal associates and attitudes, his risk of reoffending may be reduced.
Criminal history
The offender has a significant criminal history. In 2014 he committed the offence of destroying or damaging property.
In 2015 he was given a suspended sentence of imprisonment of three months, which as a result of a breach of the good behaviour order he was required to serve. He also committed the offence of aiding or abetting property damage.
In 2016 he committed the offence of attempted robbery on two occasions for which he was given a partially suspended sentence of imprisonment. As a result of breaching the good behaviour order he was required to serve an additional period in custody. On the same day as the attempted robbery he committed the offence of escaping from arrest and two counts of obstructing or resisting a public official. As a result of orders made in the Magistrates Court on 26 March 2018, he was at the time of the current offending on good behaviour orders relating to the escape charge and one of the resisting territory public official charges.
On a separate occasion in 2016 he committed the offence of aggravated robbery and making a demand with a threat to endanger health. He was given an aggregate sentence of three years and one month which was suspended after 13 months. The good behaviour order associated with the suspension of the sentence for aggravated robbery was stated as commencing on 31 January 2019, but was only ultimately entered into on 10 February 2019. It has therefore been breached by the present offending.
In 2018 he committed the offence of destroying or damaging property and was sentenced to two months’ imprisonment. He also committed two offences of being a detainee with the possession of a prohibited thing and on each count was given a one month sentence which was suspended upon entering into a good behaviour order for a period of 12 months from 14 March 2019 until 13 March 2020. The present offending constitutes a breach of these good behaviour orders.
Plea of guilty
The offender pleaded guilty at an early stage. That was consistent with the admissions that he made when he was first interviewed by police. He was initially charged with attempted robbery but as a result of further admissions that he made concerning the MDMA, the alternative charge of aggravated robbery was substituted. The making of those further admissions is indicative of conduct that facilitates the administration of justice. A discount of 25% on account of the plea of guilty is appropriate.
Time in custody
The offender has been in custody since his arrest on 28 April 2019. He has therefore spent 99 days in custody prior to today referable to these offences. The backdate date is therefore 28 April 2019.
Consideration
The circumstances of the offender are significantly different from those which existed at the time of the imposition of sentences by Murrell CJ in March 2018: see R v Gordon [2018] ACTSC 94. At that stage there were facts which supported the submission made by counsel for the offender that he was “at a crossroads in his life”: [35]. He was only 20 years and five months of age at the time of that offending. He had suffered a period of full-time incarceration which was described as a “wake-up call” for him, he had made a very concerted attempt to rehabilitate himself and indicated “insight and maturity” in relation to addressing his mental health problems. He demonstrated shame and remorse and had participated in a restorative justice program. He had ambitions to reengage with a church, to complete Year 12 and to look for an apprenticeship. It was in that context that her Honour imposed a sentence on the aggravated robbery charge which was largely suspended. The circumstances of the offender are different now. He was released from custody on 10 February 2019 and returned to drug use and the commission of these offences very shortly after. Whilst he is still a young man, it is clear that his period in custody and the passage of time was not sufficient to prevent him from returning to very serious criminal activity. Therefore, he is in the unfortunate position of having passed the crossroads and taken a wrong turn. Whilst rehabilitation must still be a significant consideration for a young man, greater weight must be given to specific deterrence and protection of the community in sentencing. As with any offending of this nature, denunciation of the conduct and general deterrence must also be significant considerations.
The gravity of the offending is such that having considered the available alternatives I have concluded that no sentence other than a sentence of imprisonment is appropriate. Having regard to the gravity of the offending, the offender’s criminal history and the previous sentences that were substantially suspended, I consider it appropriate that the present sentences be served by way of full-time detention.
So far as the aggravated robbery is concerned this was a serious example of that offending. It is more serious than the typical case described in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [162]. In particular, the offender has a significant criminal history and actual violence was used during the offending. On the other hand the victim was not a person in a vulnerable position such as a shopkeeper or taxi driver. In Henry the court identified that the sentence for such an offence would fall in the range of four to five years. Having regard to the more serious nature of the present offence, the maximum penalty and the poor criminal history of the offender I consider that the appropriate starting point on the charge of aggravated robbery is a sentence of five years’ imprisonment. This is reduced to three years and nine months on account of the plea of guilty. On the charge of possession of MDMA the starting point is a sentence of two months which is reduced to one and a half months on account of the plea of guilty. On the charge of intentional wounding, the starting point is a sentence of two years reduced to one year and six months on account of the plea of guilty.
There is a close relationship between the aggravated robbery charge and the two other charges. That is because the force used in the aggravated robbery was the stabbing which constituted the intentional wounding. Similarly, the theft which formed the component of the aggravated robbery charge involved taking possession of the MDMA which was the basis of the Drugs of Dependence Act charge. The offender only possessed these drugs for a short period between the aggravated robbery at 12:10pm and his arrest at about 12:30pm. Because of the close relationship between the offending and considering the totality of the sentences that I impose today, I consider it appropriate that each of the three offences be wholly concurrent with each other.
It is then necessary to turn to the other matters involving breaches of good behaviour orders.
Although the parties proceeded on the basis that it was necessary to address breaches of good behaviour orders on both of the offences sentenced by Murrell CJ (make demand with threat to endanger health (CC2017/8398) and aggravated robbery (CC2017/8397)), examination of her Honour’s reasons for decision indicate that it is only necessary to do so in relation to the aggravated robbery offence because the sentence for the other charge (make demand with threat to endanger health) was fully served between 1 January 2018 and 31 May 2018.
On the sentence for aggravated robbery imposed by the Chief Justice, because of a delay in releasing the offender, he remained in custody after the date on which his sentence might have been suspended. Instead of signing the good behaviour order on 31 January 2019, he only signed it on 10 February 2019 and was released on that date. The delay in signing the good behaviour order arose because he was bail refused on other charges. However, it was only upon the signing of good behaviour order that his sentence of imprisonment was suspended and it is therefore appropriate to treat him as having served 13 months and 11 days in custody on the aggravated robbery charge.
On that charge, having regard to the gravity of the offending, the fact that it was committed shortly after the commencement of the good behaviour order and was of a similar nature to his earlier offending, it is appropriate under s 110 of the Crimes (Sentence Administration) Act2005 (ACT) to cancel the good behaviour order and impose the suspended sentence. The balance of that sentence required to be served is a period of one year, 11 months and 20 days.
There are two other suspended sentences arising from sentences imposed by Special Magistrate Hunter on 14 March 2019. Those were both sentences for possession of a prohibited thing by a detainee and involved sentences of imprisonment of one month suspended on entry into a 12 month good behaviour order. Having regard to the gravity of the current offending and the fact that it occurred so soon after the imposition of the sentences, I consider that it is appropriate to cancel the good behaviour order and in each case to impose the suspended sentence. Having regard to the totality of the sentences that I will impose today, these sentences will be served concurrently.
Finally, there are two sentences originally imposed by Magistrate Hunter on 1 May 2017: resist territory public official and escape from arrest. These were breached and effectively reimposed by Magistrate Boss on 26 March 2018. The offences relate to the offender’s conduct when seeking to avoid apprehension by police following the attempted robbery for which he was ultimately given a sentence of imprisonment. The conduct involved escaping from police as he was being put into a police vehicle and then violently resisting arrest after police had chased him down. The offence of escape arrest contrary to s 160 of the Crimes Act carries a maximum penalty of imprisonment for five years or 100 penalty units or both. The offence of resisting a territory public official contrary to s 361(1) of the Criminal Code carries a maximum penalty of two years’ imprisonment or 200 penalty units or both. On each charge I will cancel the good behaviour order and impose a sentence of two months’ imprisonment. These sentences will be concurrent with each other.
The aggregate sentence to be imposed is five years, 11 months and 21 days. I consider it appropriate to set a non-parole period which is shorter than usual. That is because notwithstanding the failure by the offender to make use of the opportunity of the suspended sentence imposed by the Chief Justice, having regard to his youth there is still some prospect that after a further substantial period of custody he will be able to return to the community and, with supervision, remain free from further offending. The non-parole period will be a period of three years.
Orders
The orders of the Court are:
1. On the charge of aggravated robbery (CC2019/5920) the offender is convicted and sentenced to imprisonment for three years and nine months from 28 April 2019 until 27 January 2023.
2. On the charge of intentional wounding (CC2019/4901) the offender is convicted and sentenced to imprisonment for one year and six months from 28 April 2019 until 27 October 2020.
3. On the charge of possessing a prohibited substance, namely MDMA, (CC2019/4899) the offender is convicted and sentenced to imprisonment for one month and 15 days from 28 April 2019 until 12 June 2019.
4. On the charge of aggravated robbery (CC2017/8397) the good behaviour order arising from the orders made on 15 March 2018 is cancelled and the sentence of one year, 11 months and 20 days’ imprisonment is imposed from 28 January 2023 until 17 January 2025.
5. On the charge of being a detainee in the possession of a prohibited thing (CC2018/8968) the good behaviour order entered into as a result of orders made on 14 March 2019 is cancelled and the sentence of one month imprisonment is imposed from 18 January 2025 until 17 February 2025.
6. On the charge of being a detainee in possession of a prohibited thing (CC2018/8969) the good behaviour order entered into as a result of the orders made on 14 March 2019 is cancelled and the sentence of one month imprisonment is imposed from 18 January 2025 until 17 February 2025.
7. On charge CC2016/11857 the good behaviour order arising from the orders made on 26 March 2018 is cancelled and the offender is sentenced to two months’ imprisonment from 18 February 2025 until 17 April 2025.
8. On charge CC2016/11859 the good behaviour order arising from the orders of the Magistrates Court on 26 March 2018 is cancelled and the offender is sentenced to two months’ imprisonment from 18 February 2025 until 17 April 2025.
9. The non-parole period is a period of three years commencing on 28 April 2019 and ending on 27 April 2022.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 3 October 2019 |
3